Last fall, I called attention to a baffling ruling by the Washington supreme court (in Henderson v. Thompson) that concluded that routine language used by defense counsel in a personal-injury case somehow “called on racist tropes” and that held that a plaintiff is presumptively entitled to a new trial if “an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.”
I’m pleased to see that the losing party, Alicia Thompson, has filed a certiorari petition in the Supreme Court. Here are excerpts from the petition’s introduction (citations omitted):
Appeals to racial bias have no place in a court of law. As this Court recently put it, “The duty to confront racial animus in the justice system is not the legislature’s alone.” Courts and lawyers alike share the responsibility to ensure trials remain free of statements or arguments that inject racial bias into judicial proceedings. The Washington Supreme Court thus rightly recognized that “our legal system is based on the premise of judicial neutrality, procedural fairness, and equal treatment” for all.
But the novel implicit-racial-bias standard the Washington Supreme Court created to pursue these important goals injects—rather than eliminates—considerations of racial stereotypes throughout judicial proceedings.
The standard unconstitutionally prohibits trial counsel from making legitimate, race-neutral, evidence-based arguments in certain circumstances. It does this by creating an outlier standard for granting a new civil trial when a party alleges that “implicit, institutional, and unconscious” racial bias affected the verdict. Under this standard if counsel’s race-neutral arguments about witness credibility implicitly “could evoke racist stereotypes,” then the trial court must “presume that racial bias affected the verdict, and the party benefitting from the alleged racial bias has the burden to prove it did not.”
The serious due-process and equal-protection violations caused by this standard warrant this Court’s immediate attention. The opinion below would upend civil trials, prohibiting, in certain circumstances, common arguments addressing witness credibility—such as those concerning financial interest, coaching, bias, or trial conduct and demeanor. They are the types of arguments made countless times every day in courtrooms throughout the country and are wholly appropriate as Washington’s own Pattern Jury Instructions confirm. Yet the Washington Supreme Court denounces them as racial discrimination— even holding that counsel can be sanctioned for making such arguments.
The trial transcript confirms that each of the statements in defense counsel’s closing argument that the Washington Supreme Court found improper is race-neutral and tethered to the evidence….
This Court should summarily reverse the Washington Supreme Court’s outlier decision. This standard violates due process by prohibiting parties from “‘present[ing] every available defense’” that is race-neutral and evidence-based. The standard also violates equal protection by “inject[ing] racial considerations” pervasively throughout the judicial process to inappropriately stifle a party’s arguments.
Alternatively, the Court should either grant this petition for plenary review, or hold this petition and grant, vacate, and remand in light of cases pending before this Court addressing when racial considerations can be injected into government decisionmaking.